Landlord and tenant — Covenant to repair — Appeal by local authority from county court decision in favour of tenant holding authority liable for breach of covenant to repair and maintain the structure and exterior of dwelling-house — The dispute concerned the front door of the dwelling-house, which stood on an exposed site facing the prevailing south-west wind — Tenant complained of the constant ingress of water blown through or under the door which, over a period of 30 years, had been a source of trouble and inconvenience and had inter alia caused damage to carpets — A variety of remedial works had been carried out by the local authority landlords over this period without success, including replacement of parts of the door which had rotted and, in 1979, replacement of the whole door — The trouble was eventually cured in 1983 by the installation of a purpose-designed weatherproof door, an aluminium self-sealing door unit — In an action in the county court the tenant was awarded £250 for damage to carpets, £100 as general damages for loss of amenity and £37.50 interest — As the issue was one which affected other houses in the same row, the landlords appealed — Although the tenant’s claim mentioned the implied obligations under section 32 of the Housing Act 1961 and also the provisions of the Defective Premises Act 1972, the argument was based on the express covenant to maintain and repair the structure and exterior — The appellants submitted that the water penetration was not due to a condition calling for repair under the covenant but to an inherent design defect outside its ambit; any duty to rectify the underlying defect could arise only if there was an existing want of repair — Respondent contended that the house was not in repair if the door did not keep out the wind, water and
The following
cases are referred to in this report.
Brew Bros
Ltd v Snax (Ross) Ltd [1970] 1 QB 612; [1969]
3 WLR 657; [1970] 1 All ER 587; (1969) 20 P&CR 829; [1969] EGD 1012; 212 EG
281, CA
Elmcroft
Developments Ltd v Tankersley-Sawyer [1984]
EGD 348; (1984) 270 EG 140, [1984] 1 EGLR 47, CA
Foster v Day (1968) 208 EG 495, CA
Lurcott v Wakely and Wheeler [1911] 1 KB 905, CA
Post
Office v Aquarius Properties Ltd [1985] 2
EGLR 105; (1985) 276 EG 923 (Hoffmann J); [1987] 1 EGLR 40; (1987) 281 EG 798,
CA
Quick v Taff-Ely Borough Council [1986] QB 809; [1985] 3 WLR 981;
[1985] 3 All ER 321; (1985) 84 LGR 498; [1985] 2 EGLR 50; 276 EG 452, CA
Ravenseft
Properties Ltd v Davstone (Holdings) Ltd
[1980] QB 12; [1979] 2 WLR 897; [1979] 1 All ER 929; (1978) 37 P&CR 502;
[1979] EGD 316; 249 EG 51, [1979] 1 EGLR 54, DC
Wates v Rowland [1952] 2 QB 12; [1952] 1 All ER 470, CA
This was an
appeal by Monmouth District Council, as landlords, from a decision of Assistant
Recorder Eifion Morgans, at Pontypool County Court, in favour of Arthur John
Stent, tenant of a dwelling-house at 102 Old Barn Way, Abergavenny, Gwent, in
an action by the latter for damages for breach of the landlords’ covenant to
keep in repair the structure and exterior of the dwelling-house.
Nigel Hague QC
and J Milwyn Jarman (instructed by K N A Raynor, solicitors’ department,
Monmouth District Council) appeared on behalf of the appellants; William Gage
QC and Brian Watson (instructed by Gabb & Co, of Abergavenny) represented
the respondent.
Giving the
first judgment at the invitation of Sir John Arnold P, STOCKER LJ said: This is
an appeal from so much of the judgment of Mr Assistant Recorder Eifion Morgans
given at Pontypool County Court on November 26 1985 as adjudged that the
defendants were in breach of their duty to keep in repair the structure and
exterior of a dwelling-house known as 102 Old Barn Way, Abergavenny, in the
county of Gwent, by failing to prevent water penetration to the front external
door of the said property. The learned judge also found that the water
penetration had caused damage to the plaintiff’s carpets in the sum of £250,
and he awarded £100 general damages in respect of loss of amenity and £37.50
interest. Therefore, he awarded a total sum of £387.50, with costs. No issue
arises on the causation or remoteness of the damage or of the amount of the
damages so assessed.
The issue,
which is in form a simple one, but which in fact has presented numerous
problems which have been skilfully argued before this court, is whether such
damages admittedly caused by water penetration through or under the front door
of the premises arose from the failure on the part of the appellants to carry
out their obligations under the repairing covenant.
So far as the
factual outline of the case is concerned, the situation is this. The premises
in question, no 102, is one of a number of similar houses in Old Barn Way built
in 1953. The respondent became a tenant in that year and was the original
tenant under a weekly tenancy of those premises. He therefore took over the
house as the first person to have that experience. The landlords at that date
were the Abergavenny Council and the appellants are their successors in title.
It is not entirely clear what were the precise terms of the landlords’
obligations at the date of the first letting or the document in which such
terms were contained, but that does not matter for the purposes of this case,
since it is accepted by the appellants that they were under an obligation
imposed by a covenant in the lease to keep the exterior and structure of the
property in repair. There are among the documents certain printed terms of
conditions of tenancy, condition 2 of the landlords’ obligations being:
The Landlord
will repair and maintain the structure and exterior of the dwelling-house.
Mr Hague agrees
that that represents the contractual obligation of the landlords in this case.
The
respondent’s house and the others in Old Barn Way stand on an elevated and very
exposed site facing into the direction of the prevailing south-west wind. It is
not disputed that the respondent’s house, and for that matter others in the
same row, had almost from the outset of the tenancy in 1953 suffered from the
ingress of water through or under the front door. From time to time efforts
were made by the appellants to rectify that situation.
The appellants
rely, in support of the arguments put before this court, on the detail of the
evidence given by the plaintiff, and accordingly I will now refer to that
evidence.
The plaintiff
having described that his front door was wet within six months after he moved
in continued:
Windows,
letter box and panelling in the door. I reported to the Town Hall (Rent
Offices). Houses had just been built. Clerk of Works on Site — Advice was given
to put a bolt on top of the door to prevent it from warping. Reported it again,
time and time again, we more or less complained every time it rained. The door
would become swollen, water came in via door frame. Wood of the frame and door
became rotten. The workmen cut off the rotten parts and put a new one in — it
happened a few times.
When the
Monmouth District Council took over — Report to the Town Hall. Workmen would
come and see — the problems like before. Door replaced roughly 1979. No good at
all. Water still came in through the glass panel, sides and underneath. Door
stuck, frame wanted doing. If you stood inside you could see outside — there
was a gap rain, snow, wood lice, anything would get in.
We kept
complaining, very rarely they would do anything about it. Put aluminium step
below the door — no effect at all. Water stayed in the groove, rain into hall
via frame and damaged the carpet. Summer 1983, new aluminium sealed door unit
fitted, no problem since then. Door opens inwards, water back well beyond the
first step of the staircase. . . .
Then he
describes the damage to his carpets, to which it is not necessary to refer.
When he was
cross-examined, he said:
For 30 years
the problem remained. New house when I went there. Water started coming in
through the edge of the glass and panelling. Most of the water came from under
the door. There was a groove put under the door a couple of years later . . .
Aluminium
door fixed in Summer, 1983. . . .
He describes
that groove in re-examination thus:
Groove a
couple of inches, 2′ deep. It got full up with water. No threshold or a piece
of wood across the bottom of the door.
That, in outline,
is the evidence that was given to the court as recorded by the learned
recorder.
There was also
called in support of the respondent’s case a Mrs Morgan, a resident in the same
street, who lived at 116 Old Barn Way. She said:
I am friendly
with the plaintiff. We have had the same problems ourselves. Seen the carpet
wet about 2 years after we moved in. Went [to the respondent’s] for coffee. The
problem went away when the aluminium door fitted in 1983. New door in 1979 no
good. It was saturated half-way back to the hall. Bottom step of stairs began
to rot. . . .
So she was
describing fairly succinctly a similar state of affairs as that which existed
and was described by the respondent.
The appellants
disclosed a certain number of their work sheets and documents which are
contained in the bundle. They do not go back further than 1979. The first
document records a complaint of May 11 1979 which apparently was not dealt with
by work being carried out until April 13 1980. The details shown upon that job
specification are:
Take off door
and rehang on new frame and bed in glass door.
Fix new 6′ 6′ X 2′ 9′ door
frame.
Fix 2 ADS
weather strips . . . and repair doors.
Fix new
mortice lock to rear door
A complaint of
January 7 1980, dealt with apparently on the next day, January 8, indicates as
the reported defect:
New door
frame fitted recently, but wasn’t completed.
Then apparently
the work done was to seal around the front door-frame with mastic. That was
referring clearly to the new door fitted in 1979.
There is a
further report of a complaint on June 28 1982, the defect reported being:
Front door
leaking very badly, water running into hall.
The work
carried out was apparently:
Remove glass
in front door, re-bed 4 pieces of glass.
Take off
defective weather board and fix new board.
Fix a storm
guard threshold.
That is
perhaps sufficient indication. The records from their nature are not
necessarily complete or comprehensive, but it would appear, in my view, that
the defects dealt with on those occasions were treated by the respondents as
being repairs under the repairing covenant. Of course, that does not conclude
the matter, because they may have been acting from paternalistic ideals rather
than under the compulsion of legal obligation. But that does seem to be how
they then dealt with it.
The plaintiff
wrote a letter of complaint in 1983, and proceedings being imminent or having
started, a surveyor, a Mr Frecknall, was instructed on his behalf. He gave
evidence at the trial and produced his report, which included details of his
inspection and his conclusion. This report was not formally admitted by the
appellants, but its conclusions and findings were not challenged or seriously
controverted by the appellants. Indeed, it is that report which forms a great
deal of the substance of the appellants’ own case. That report describes
instructions being received on April 2 1983. An inspection was carried out on
April 3, and its objective is stated to have been that the aim of the survey
was to assess the likely cause of the problem being ingress of water. Six
houses in Old Barn Way were examined by Mr Frecknall, one of them being the
respondent’s house. The report describes by way of introduction:
The Old Barn
Way houses are built on an elevated highly exposed site. With the exception of
number 49
which is not
the respondent’s house
all the houses
seen are directly exposed to the prevailing south to south-westerly wind.
The houses
were built nearly 30 years ago, and from my inspection it is evident that
maintenance has been a constant problem. Painting, loose tiles, eaves details,
metal windows and the front doors and frames appear to have been in need of
regular repair and maintenance.
The report
includes a number of diagrammatic representations of the door in its original
form (though that, of course, would have had to have been to a degree
speculation on the part of Mr Frecknall) and details of certain attempted
rectifications by the appellants though not necessarily to the respondent’s
house. By way of observation, the report states:
The top
surface of the concrete step is at the same level as the finished floor level
inside the entrance hall.
There is no
evidence that a planted threshold or weather bar was included in the original
design detail.
He points out
there are certain electrical risks which may arise through the ingress of water
or the state of the carpet, and by way of assessment, so the report says:
Water runs
down the face of the door and collects on the step which extends in front of
the door and frame. Under normal conditions it would be unrealistic to expect
the typical base of door detail to be weatherproof.
The exposed
nature of the site in question requires a much more effective design solution
for the base of the door to achieve a weatherproof detail.
That, of
course, was an inspection prior to the insertion of the aluminium self-sealing
door.
Modifications,
as shown on [the attached plan] have been carried out in an attempt to solve
the problem of water penetration by containing the water and draining it back
towards the outside, either through the step or through an aluminium extrusion
by means of weep holes.
These details
have failed because of the severe wind pressure that undoubtedly builds up
under the door leaf.
By way of
conclusion he says:
The main
reason for water penetration under the doors is that the concrete step holds
water which has run down the face of the door.
The exposure
of the site determines that no amount of run-off provided by chamfering the top
surface of the step would prevent water being blown under the door. Water held
on the step by wind pressure would eventually cause the bottom of the door
frames to rot. This appears to have happened already, and at least two of the
houses visited had had new pieces of door frame spliced into the existing
frame.
One adds that
in 1979 the respondent’s house had a completely new door. The conclusions
continue:
The
modifications which have been carried out include the use of various flexible
sealing strip, increasing the size of weather bars and rebates by adding
external timber linings, . . .
And then he
continues with the other efforts which have been made. Finally, under the
heading of ‘Conclusions’, he says:
Unless this
particular design detail is treated from first principles it is unlikely that
the tenants of these houses will ever be free from the problem of water
penetration and the subsequent recurring damage to carpets and internal
fittings and decorations.
He then made
three recommendations, the second of which appears to have been one adopted by
the appellants, for the second recommendation is:
Purpose-designed
weatherproof doors and frames with integral seals are available and could be
used. These are sophisticated components and require fitting by specialists.
It is
unnecessary to deal with his other two recommendations. The recommendation
adopted is in fact the cheapest of the three recommendations. One perhaps
should add that it was not suggested in the course of the trial that such a
purpose-designed weatherproof door would not have been available at a much
earlier date, and certainly in 1979.
As has been
observed, it is largely upon that report, together with the respondent’s
evidence, that the appellants found their case as argued in this court, and
indeed before the trial judge, and it is for that reason that I have thought it
proper to cite fairly extensively from those parts of the evidence.
Put very
shortly at this stage, the appellants contend that the cause of the water
ingress either through or under the door was not due to any defective condition
of the door calling for repair under the covenant, but was due to an inherent
design defect, and that accordingly the damage sustained by the respondent was
due to design defects outside the ambit of the repair covenant and, therefore,
cannot found a valid claim for breach of covenant in respect of the repairing
obligations.
The respondent
gave evidence concerning the damage and described it. It is unnecessary to
relate that part of his evidence. Nor is it necessary to go in any detail into
the contentions in the pleadings. It is perhaps sufficient to say that in the
amended particulars of claim by para 3 the covenant to repair is set out, and
the provisions of section 32 of the Housing Act 1961 are alleged to apply to
the tenancy and the claim was founded in the alternative under the provisions
of that implied term under the Housing Act. It is also contended that the
provisions of section 4 of the Defective Premises Act 1972 applied and were
breached. It is unnecessary to express any view on that, because neither
statutory provision seems to be relevant to the real issues in this case and
neither was relied upon in argument before us.
So far as the
defence is concerned, the only matter of relevance seems to be that contained
in subpara (3) of para 4 of the defence, in which it is affirmatively alleged
that the defendants (that is the appellants) had responded to complaints
received from the plaintiff and carried out the following repairs, being such
repairs as were reasonably necessary at the time of the relevant complaint, and
they are listed:
Changed the
door.
Increased the
width of the door stop and inserted additional capillary grooves.
Inserted
normal weather stripping.
Inserted high
performance weather stripping.
Inserted
aluminium storm guards.
The only
possible relevance of those pleadings, as it seems to me, is the point
mentioned earlier, that the appellants at all times seem to have accepted that
their attempts to prevent the ingress of water included those matters which
might be said to involve a change in the nature of the structure itself and
accordingly attempts to deal with a latent or design defect under the
provisions of the covenant.
The judge’s
findings were fairly shortly expressed. He found that:
. . . water
did seep under the door and between the wall and frame and that [the
respondent] had a genuine complaint, as indeed one can gather from the evidence
of Mr Frecknall, a well qualified architect and arbitrator of fifteen years’
standing.
His report
was not agreed as such, but he had seen six houses in Old Barn Way, including
the plaintiff’s. His evidence indicated that there was no threshold or
weatherboard bar in the original design and it is true, as Mr Jarman [for the
appellants] suggests, that this may be a matter of improvement as opposed to
repair, but in my judgment it is a repair, notwithstanding Quick v Taff-Ely
Borough Council [1985] 3 All ER 321 and Pembery v Lamdin
[1940] 2 All ER 434
which are
matters to be considered hereafter
which in my
judgment are not on all fours with the present case.
Although I am
bound by any decision of the Court of Appeal the case of Pembery was in
relation to a damp proof course, and the case of Quick was mostly in
relation to condensation, as opposed to a patent defect. I find as a fact here,
having heard all the evidence in this case, including Mr Taleman’s,
I interpose
that he was an official of the appellants
who gave
evidence in the best manner he could, that his authority (the defendant) —
[appellants] — has no records before 1979. I am not going to go through the subsequent
reports here as to the repairs which have been carried out, but they include
replacement of a defective weatherboard: P2 p4. These are repairs not
improvements. Even if they were improvements, as Mr Jarman invited me to hold,
I would find that they amounted to repairs since they were defects here since
the beginning of this (Council) estate.
The judge
continued:
Under the
circumstances, therefore, I have come to the conclusion rightly or wrongly that
it was the defendant’s duty to repair the external and structural parts and
incur any capital expenditure which was required in the replacement of any
doors, windows etc, in accordance with the terms of the tenancy and as laid out
in P3, which was given to the plaintiff in about 1980.
Those
conclusions, of course, beg specifically the very issue which is challenged in
this court.
It is again
unnecessary, as it seems to me, to refer to the formal grounds of appeal, since
all the relevant matters have been reflected in the cogent argument of Mr Hague
before this court. Those arguments, I hope, can be summarised accurately as
follows. First, and this is an important matter, that the damage did not result
from disrepair, but as a result of the door not being effective in the first
place. That is to say that the cause of the ingress of water was original
design defect. He argued that, in such a case, a duty to repair arose only if
there was an existing defect in fact which itself called for repair, and the
only ‘sensible’ way of achieving this repair was to rectify the design defect
also. (Many synonyms have, in the authorities cited, been substituted for the
word ‘sensible’ used by counsel in his argument.) He submitted that in the instant appeal those
facts did not arise, since the door could have been replaced in its original
form, and the replacement of the original door would be the limit of the
appellants’ obligations. He agreed that those comments were subject to a
general observation that it was possible that a defect calling for repairs
under the covenant might be due to inherent underlying defect and was
repairable as such, but that that comment was subject to the criticisms to
which I have just referred. He submitted that it was not correct in law that a
duty to repair applies simply because the door lets in water or is not wind and
watertight. There must be some specific defect or lack of repair within the
terms of the covenant that must be proved; and in this case no such specific
defect or lack of repair was established. He gave as a contrasting example of
that proposition that if slates of a house were loose due to defect, then there
would be a liability because the house would be in disrepair in that respect,
but if the slates had never been there, then, although that would give rise to
the ingress of water there would be no disrepair and no liabilities. He
enlarged upon those submissions in the context of various authorities to which
reference has to be made. Second, he submitted generally that on the facts of
this case such damage or lack of repair to the door as may have been proved
over the years did not itself cause the damage which was solely due to the
design defect presented by the alignment of the outside step and the inside
floor in conjunction with the exposed site upon which this building had been
built.
Mr Gage for
the respondent submitted, first, a general proposition that the purpose of a
door is to provide access and keep out wind, water and the elements, and in the
context of a private dwelling-house and of a covenant to keep in repair such a
house is not in repair if the door in question does not fulfil those basic
purposes. He submitted in the alternative that there was evidence of lack of
repair, actual damage and actual defects in this particular door.
I therefore
turn to consider the various authorities which have been cited before this
court. A convenient starting point, though not chronologically the first of the
cases cited, is the case of Ravenseft Properties Ltd v Davstone
(Holdings) Ltd [1980] QB 12. This was a case of a building constructed of
concrete with a facing of stone cladding. When constructed there were no
expansion joints to deal with the differential expansion of those two materials
respectively, and also the facing stones had not been properly tied in and had
been erected in a way which was not a workmanlike one. The consequence of those
two matters was that there was a bowing of the stonefacing with a consequence
of the danger of the stones falling, to the danger of persons below. The lack
of the expansion joint was an inherent design factor. The failure to tie in the
defective stone was a matter of defective building practice. The learned trial
judge, Forbes J, held that both, in the circumstances of the case, fell within
the repairing covenant. At the time the building was erected the importance of
expansion joints had not been appreciated in the trade, and it was not then
current practice to erect a building with such expansion joints. The
unsuccessful defendants put forward a proposition which had two limbs, which
are set out by the learned judge at p 17 at A of the report. That reads:
Now despite
somewhat lengthy cross-examination of the landlords’ witnesses, there is here
no dispute on fact and the tenants called no evidence. In these circumstances
the landlords claim to be reimbursed by the tenants the cost of the work
carried out and they put their claim under three headings.
He deals with
those headings, and continues:
The tenant’s
defence is twofold. Mr Colyer says first, there is, in that branch of landlord
and tenant law concerned with repairing covenants, a doctrine of inherent
defect which is applicable to such covenants to repair. This is where wants of
reparation arise which are caused by some inherent defect in the premises
demised, the results of the inherent defect can never fall within the ambit of
a covenant to repair . . . Secondly,
and this is
what has been referred to in the argument as the second limb
he says, if
that proposition is wrong the covenantor is still not bound to pay for any
works which, in fact, remedy the inherent defect.
On the first
limb of that proposition, the learned judge’s findings and conclusion are set
out at p 21 at C, where he says:
I find
myself, therefore, unable to accept Mr Colyer’s contention that a doctrine such
as he enunciates has any place in the law of landlord and tenant. The true test
is, as the cases show, that it is always a question of degree whether that
which the tenant is being asked to do can properly be described as repair, or
whether on the contrary it would involve giving back to the landlord a wholly
different thing from that which he demised.
On the second
limb, after considering the case of Lurcott v Wakely and Wheeler
[1911] 1 KB 905, a case in which the court had found recoverable under a
repairing covenant the provision of footings in a wall, Forbes J said, on p 22
at D:
. . . By this
time it was proper engineering practice to see that such expansion joints were
included, and it would have been dangerous not to include them. In no realistic
sense, therefore, could it be said that there was any other possible way of
reinstating this cladding than by providing the expansion joints which were, in
fact, provided. It seems to me to matter not whether that state of affairs is
caused by the necessary sanction of statutory notices or by the realistic fact
that as a matter of professional expertise no responsible engineer would have
allowed a rebuilding which did not include such expansion joints to be carried
out. I find myself, therefore, bound to follow the guidance given by Sir
Herbert Cozens-Hardy MR in Lurcott’s case [1911] 1 KB 905, 914-915:
‘It seems to
me that we should be narrowing in a most dangerous way the limit and extent of
these covenants if we did not hold that the defendants were liable under
covenants framed as these are to make good the cost of repairing this wall in
the only sense in which it can be repaired, namely, by rebuilding it
according to the requirements of the county council.’
The next case
to which reference requires to be made is the case of Quick v Taff-Ely
Borough Council [1986] QB 809*. This is a case upon which the appellants
strongly relied. The headnote, to give the facts, reads:
The plaintiff
was the tenant of a house owned by the defendant council. As a result of very
severe condensation throughout the house decorations, woodwork, furnishings,
bedding and clothes rotted, and living conditions were appalling. The
condensation was caused by lack of insulation of window lintels, single-glazed
metal-frame windows and inadequate heating. The plaintiff brought proceedings
in the county court, alleging that the council was in breach of its covenant,
implied in the tenancy agreement by section 32 (1) of the Housing Act 1961, ‘to
keep in repair the structure and exterior’ of the house.
*Editor’s
note: Also reported at [1985] 2 EGLR 50; (1985) 276 EG 452.
I think that
that is, perhaps, a sufficient resume for present purposes.
At p 817
between C-F, Dillon LJ, giving the first judgment of the court, said this:
The judge
delivered a careful reserved judgment in which he reviewed many of the more
recent authorities on repairing covenants, starting with Pembery v Lamdin
[1940] 2 All ER 434.
Submissions
had been made upon which the judge founded his judgment as follows:
(1) recent authorities such as Ravenseft
Properties Ltd v Davstone (Holdings) Ltd [1980] QB 12 and Elmcroft
Developments Ltd v Tankersley-Sawyer (1984) 270 EG 140, [1984] 1
EGLR 47 show that works of repair under a repairing covenant, whether by a
landlord or a tenant, may require the remedying of an inherent defect in a
building; (2) the authorities also show that it is a question of degree whether
works which remedy an inherent defect in a building may not be so extensive as
to amount to an improvement or renewal of the whole which is beyond the concept
of repair; (3) in the present case the replacement of windows and the provision
of insulation for lintels does not amount to such an improvement or renewal of
the whole; (4) therefore, the replacement of the windows and provision of the
insulation to alleviate an inherent defect is a repair which the council is
bound to carry out under the repairing covenant.
He then
stated, by way of comment upon those submissions:
But, with
every respect to the judge, this reasoning begs the important question. It
assumes that any work to eradicate an inherent defect in a building must be a
work of repair, which the relevant party is bound to carry out if, as a matter
of degree, it does not amount to a renewal or improvement of the building. In
effect, it assumes the broad proposition urged on us by Mr Blom-Cooper for the
plaintiff that anything defective or inherently inefficient for living in or
ineffective to provide the conditions of ordinary habitation is in disrepair.
But that does not follow from the decisions in Ravenseft’s case [1980]
QB 12 and Elmcroft’s case 270 EG 140, [1984] 1 EGLR 47 that works of
repair may require the remedying of an inherent defect.
On p 818 at F
there appears this passage:
If there is
such damage caused by an unsuspected inherent defect, then it may be necessary
to cure the defect, and thus to some extent improve without wholly renewing the
property as the only practicable way of making good the damage to the
subject-matter of the repairing covenant. That, as I read the case, was the
basis of the decision in Ravenseft [1980] QB 12. There there was an
inherent defect when the building, a relatively new one, was built in that no
expansion joints had been included because it had not been realised that the
different coefficients of expansion of the stone of the cladding and the
concrete of the structure made it necessary to include such joints. There was,
however, also physical damage to the subject-matter of the covenant in that,
because of the differing coefficients of expansion, the stones of the cladding
had become bowed, detached from the structure, loose and in danger of falling.
Forbes J in a very valuable judgment rejected the argument that no liability
arose under a repairing covenant if it could be shown that the disrepair was
due to an inherent defect in the building.
That was limb
1 of the argument put before us.
He allowed in
the damages under the repairing covenant the cost of putting in expansion joints,
and in that respect improving the building, because, as he put it, at p 22, on
the evidence ‘In no realistic sense . . . could it be said that there was any
other possible way of reinstating this cladding than by providing the expansion
joints which were, in fact, provided.’
That is a
passage which has already been cited. Dillon LJ then goes on to consider the Elmcroft
case, to which reference will be shortly made in this judgment; and he sets out
the facts in the Elmcroft case.
Dillon LJ,
having considered the cases of Ravenseft and Elmcroft, concluded
at p 820 at H:
But the crux
of the matter is whether there has been disrepair in relation to the structure
and exterior of the building and, for the reasons I have endeavoured to
explain, in my judgment, there has not, quoad the case put forward by
the plaintiff on condensation as opposed to the case on water penetration.
He therefore,
as I understand it, rejected the submission on the basis that there was no
damage which could fall within a repairing covenant other than condensation
which was due to inherent causes.
Lawton LJ, at
p 821 at F, said this (and I quote this passage at some length):
It has to be
approached in the same way as the letting of any house which is outside the
provisions of section 6 of the Housing Act 1957, as amended, in respect of
which there is a covenant by the landlord ‘to keep in repair the structure and
exterior . . .’ The standard of repair
may depend on whether the house is in a South Wales valley or in Grosvenor
Square; but, wherever it is, the landlord need not do anything until there
exists a condition which calls for repair. As a matter of the ordinary use of
English that which requires repair is in a condition worse than it was at some
earlier time. This usage of English is, in my judgment, the explanation for the
many decisions on the extent of a landlord’s or tenant’s obligation under
covenants to keep houses in repair. Broadly stated, they come to this: a tenant
must take the house as he finds it; neither a landlord nor a tenant is bound to
provide the other with a better house than there was to start with; but,
because almost all repair work requires some degree of renewal, problems of
degree arise as to whether after the repair there is a house which is different
from that which was let. I do not find it necessary to review the cases which
were decided before 1980.
During the
last 20 years the way in which houses and other buildings have been constructed
has produced new problems. Traditional materials may not have been used: new
methods of construction may have been employed. The materials may fail; the
methods may prove to have been unsatisfactory, causing damage; the building may
have got into a worse condition than it was when the lease was granted. In such
a case there is need for repair. The landlord or the tenant may be under an
obligation to put right what has gone wrong; and, in putting right what has
gone wrong, it may be necessary to abandon the use of the defective materials
or to use a different and better method of construction.
When
something like this happens, does the landlord or the tenant have a better
building? In one sense he does: he gets
a building without the design defect which caused the damage; but the repair
could only have been done in a sensible way by getting rid of the design
defect.
In
parentheses, I observe that Mr Hague places importance on the use there of the
word ‘only’.
Forbes J had
to consider this problem in Ravenseft Properties Ltd v Davstone
(Holdings) Ltd [1980] QB 12. In that case the repair work could not be done
satisfactorily without getting rid of a design fault. He adjudged that doing so
did not amount to such a change in the character of the building as to take the
works out of the ambit of the covenant to repair: see pp 21-22. This court in Smedley
v Chumley & Hawke Ltd, 44 P & CR 50, approached the problem in
the same way. The Ravenseft case [1980] QB 12 does not seem to have been
cited. It was, however, cited to this court in Elmcroft Developments Ltd
v Tankersley-Sawyer (1984) 270 EG 140, [1984] 1 EGLR 47 and clearly
approved. It was not cited to this court in Wainwright v Leeds City
Council (1984) 270 EG 1289. . . . I am satisfied that the approach of
Forbes J in the Ravenseft case [1980] QB 12 was right.
Again I
observe in parentheses that there are a number of cases in this court,
including this one, in which the ratio of Forbes J’s decision has been
specifically approved. Lawton LJ continued:
It follows
that, on the evidence in this case, the trial judge should first have
identified the parts of the exterior and structure of the house which were out
of repair and then have gone on to decide whether, in order to remedy the
defects, it was reasonably necessary to replace the concrete lintels over the
windows, which caused ‘cold bridging’, and the single glazed metal windows,
both of which were among the causes, probably the major causes, of excessive
condensation in the house. An argument along the following lines was put before
this court: the evidence established that some of the wooden frames into which
the single glazed metal windows were inserted had rotted and that nearby
plaster had crumbled away. Mr Hague, for the purposes of this case, accepted
that the plaster was part of the structure. Repairing the wooden frames and the
plaster could only be done sensibly if the single glazed metal windows and the
lintels were replaced by ones of better design. The council should have
appreciated that this was so. A submission of this kind would have required the
trial judge to make findings of the same kind as Forbes J made in Ravenseft
Properties Ltd v Davstone (Holdings) Ltd [1980] QB 12. He made none,
almost certainly because he was not asked to do so. He referred to Forbes J’s
judgment in these terms:
‘He held that
want of repair due to an inherent defect could fall within the ambit of a
repairing covenant, and that it was a question of degree whether work could
properly be described as repair or whether it so changed the character of the
building as to involve giving back to the landlord a different building from
that demised.’
He seems to
have overlooked the important fact in the Ravenseft case that the
cladding around the building was in disrepair and could only be repaired in a
sensible way if the design fault were put right.
In my
judgment, there must be disrepair before any question arises as to whether it
would be reasonable to remedy a design fault when doing the repair . . .
It seems to me
that in the Quick case had there been evidence that there was actual
disrepair in some material respect, that is to say some respect material to the
rectification, the decision might have been the other way. But, of course, I
cite the case only for the dicta that it contains, and not the conclusion that
might arise had the findings of fact been different from those that they were.
Neill LJ made
this observation at p 823 at E:
The
authorities to which we were referred establish that, in some cases, the only
realistic way of effecting the relevant repairs is to carry out some additional
work which will go somewhat further than putting the property back into its
former condition and will indeed result in some improvement. But this case does
not fall into that category. The repair work consisting of the replacement of
the defective parts of the wooden surrounds and the replacement of the areas of
plaster did not require as a realistic way of effecting those repairs the
replacement of the metal windows by wooden-framed windows or windows with PVC
frames.
Mr Gage on
behalf of the respondent distinguishes that case from the instant case on the
basis that the actual observable physical damage did involve or could
realistically or sensibly involve the repair also by altering the design of
what has been described as design defect.
Mr Hague
relied on the case of Foster v Day (1968) 208 EG 495. For my
part, despite his argument to the contrary, I do not derive any
shortly set out, in no more than eight lines) was a matter which was clearly
obiter and, in my view, begs rather than resolves the issues before this court.
I now turn to
consider a very recent case relied upon strongly by Mr Hague, Post Office
v Aquarius Properties Ltd (1985) 276 EG 923, [1985] 2 EGLR 105, the only
report of which before this court is the transcript itself of a judgment handed
down on December 18 1986*. It was a case which concerned a defect in the
structure of a basement which had existed from the time of the construction of
the building itself, and on p 15, near the bottom of the page, Ralph Gibson LJ,
giving the first judgment of the court, said this:
In my
judgment, however, the reasoning of the court in Quick’s case is equally
applicable whether the original defect resulted from error in design, or in
workmanship, or from deliberate parsimony or any other cause. If on the letting
of premises it were desired by the parties to impose on landlord or tenant an
obligation to put the premises into a particular state or condition so as to be
at all times for some stated purpose, even if it means making the premises
better than they were when constructed, there would be no difficulty in finding
words apt for that purpose.
*Editor’s
note: The report of the case in the Court of Appeal appears at p 40 ante
and at (1987) 281 EG 798. Hoffmann J’s judgment will be found at [1985] 2 EGLR
105 as well as at (1985) 276 EG 923.
On p 17 he
observed:
There is no
basis to be found in the decision in Proudfoot v Hart for holding
that the tenant can be held liable under an ordinary repairing covenant to
carry out work merely to improve premises so as to remove a defect present
since construction of the building.
Slade LJ, at p
21, defined what in his view disrepair meant in these terms:
However, a
state of disrepair, in my judgment, connotes a deterioration from some previous
physical condition.
Finally, I
turn to the case of Elmcroft Developments Ltd v Tankersley-Sawyer
(1984) 270 EG 140, [1984] 1 EGLR 47. The facts were that the respondents, by
their counterclaim, claimed, inter alia, damages for breach of covenant
of repair. The respondents were tenants of flats in a block of which the
appellants were the landlords. The Court of Appeal upheld the judge’s finding
that the appellants were in breach of their covenants to repair, and at p 140
there is set out the condition of the premises in question. It is said:
He held — and
this is not disputed — that there was constructed into the walls what was
intended to be a damp-proof course, consisting of slates laid horizontally.
These existed in the external and the party walls of the flat, but, owing
either to a defect in design or construction or bad workmanship, this layer of
slates intended to be a damp-proof course was ineffectual because it was
positioned below ground. The result was obvious. It allowed moisture to be
drawn up from the ground by the capillary action, with the inevitable
consequence that the flats were in a damp condition, rising damp resulting from
what was described as the bridging of this damp-proof course, and parts of the
interior of the main walls of the flats had been adversely affected up to a
height of about 1 to 1 1/2m. The rooms in the flats were damp, and the plaster,
decoration and woodwork needed repair or renewal.
There was then
cited a graphic description of the condition of two of those flats. The
remedial work necessary was referred to on p 141 as being:
The remedial
works necessary to eradicate rising dampness in the walls is the installation
of a horizontal damp-proof course by silicone injection and the formation by
silicone injection of vertical barriers where the front and back external walls
meet the dividing walls.
The court then
considered and cited from the case of Lurcott v Wakely [1911] 1
KB 905, and made citations from the judgment of Fletcher Moulton LJ, first the
definition of the expression ‘tenable repair’, and then citing from Buckley LJ
at p 141 these words:
But if that
which I have said is accurate, it follows that the question of repair is in every
case one of degree, and the test is whether the act to be done is one which in
substance is the renewal or replacement of defective parts or the renewal or
replacement of substantially the whole.
The court then
considered a passage from the judgment of Lord Evershed MR in Wates v Rowland
[1952] 2 QB 12, quoted by this court in Brew Bros Ltd v Snax (Ross)
Ltd [1970] 1 QB 612, as follows:
Between the
two extremes, it seems to me to be largely a matter of degree, which in the
ordinary case the county court judge could decide as a matter of fact, applying
a common-sense man-of-the-world view; . . .
And in the Brew
Bros case, a quotation from Sachs LJ at p 640:
It seems to
me that the correct approach is to look at the particular building, to look at
the state which it is in at the date of the lease, to look at the precise terms
of the lease, and then come to a conclusion as to whether, on a fair
interpretation of those terms in relation to that state, the requisite work can
fairly be termed repair. However large the covenant it must not be looked at in
vacuo.
The court then
cited a passage from the judgment of Forbes J in Ravenseft Properties Ltd
v Davstone (Holdings) Ltd [1980] 1 QB 12, a passage which has already
been cited in this judgment and which I, therefore, will not repeat. Ackner LJ
at p 142 said this, and it is a relevant passage in my view:
I therefore
conclude that the learned judge was wholly right in the decision which he made
as to the failure by the appellants to comply with the repairing covenant and
their obligation in regard to curing the damp by using the only practical
method at this price, namely, injecting silicone into the wall. Mr Whitaker was
at one stage prepared to concede that, as the plaster became saturated (which,
of course, it was), his clients had the obligation to do the necessary patching
— that is removing — the perished plaster and renewing it. I am bound to say
that concession made the resistance to inserting the damp-proof course a
strange one. The damp-proof course, once inserted, would on the expert evidence
cure the damp. The patching work would have to go on and on and on, because, as
the plaster absorbed (as it would) the rising damp, it would have to be
renewed, and the cost to the appellants in constantly being involved with this
sort of work, one would have thought, would have out-weighed easily the cost in
doing the job properly. I have no hesitation in rejecting the submission that
the appellant’s obligation was repetitively to carry out futile work instead of
doing the job properly once and for all.
One may observe
there that that would appear to be an explicit approval of the judgment of
Forbes J in Ravenseft so far as this second limb of the proposition is
concerned and, accordingly, that judgment of Forbes J would, in my view, have
clearly received the approbation of this court.
What are the
conclusions which should be drawn from those authorities in the light of the
evidence which has been accepted by the learned judge and which has been put
before us? I find from those
authorities, though I must confess with some regret, since in the context of
council letting of small houses it conforms in my view with common sense, that
Mr Gage’s first proposition is stated in terms which are indeed too wide. This
is a hypothesis: if the only defect in the door was that it did not perform its
primary function of keeping out the rain, and the door was otherwise undamaged
and in a condition which it or its predecessors had been at the time of the
letting, then it seems to me, on the authorities of Quick and Aquarius,
this cannot amount to a defect for the purpose of a repairing covenant even
though, as it seems to me in layman’s terms, that a door which does not keep
out the rain is a defective door, and one which is in need of some form of
repair or modification or replacement. That seems to have been the view indeed
of the appellants themselves throughout the year, since they did take steps
(though, as it turned out, ineffective steps) to deal with that very problem.
However, though common sense would dictate to me that a door which does not
keep out the rain is not performing the primary function of a door and is,
therefore, defective, and in want of repair it seems to me that in so far as
the door was the original one and was wholly undamaged, if that were to be the
factual position, then the first proposition of Mr Gage is expressed in terms
which are too wide.
In this case,
however, the factual position is that the damage undoubtedly did occur. The
appellants’ own documents illustrate that clearly and graphically. There was
damage such as to require the replacement of the door in 1979. The same applies
in 1983, and clearly this was also the position on many other occasions both
prior to and between those dates. Accordingly, applying the reasoning of this
court from the cases cited, and in particular Ravenseft Properties Ltd v
Davstone (Holdings) Ltd and Elmcroft Developments Ltd v Tankersley-Sawyer,
the former having been specifically approved by this court, in my judgment the
replacement of the wooden door by a self-sealing aluminium door was a mode of
repair which a sensible person would have adopted; and the same reasoning
applies if for the word ‘sensible’ there is substituted some such word as
‘practicable’ or ‘necessary’. The argument reflected by Ackner LJ in the
passage recently cited from Elmcroft seems to me to be precisely in
point here. There has been a history of nearly 30 years of difficulty with this
door, the difficulty being that it did not keep the rain out, and itself became
damaged; and because of the design, from time to time parts of it rotted. It
became distorted. It needed accordingly replacement in order to enable it to
perform its function at all, quite apart from the question of repairing obvious
defects which it had exhibited.
Accordingly,
in my view and upon those authorities, in this case
self-sealing aluminium door was one of the methods which could have been
adopted much earlier, and which in my view should have been adopted. Of course,
it does not follow that the self-sealing door is the only sensible way in which
that object could be achieved. There may well have been others, but in my view
the obligation under the covenant in this case was one which called upon the
appellants to carry out repairs which not only effected the repair of the
manifestly damaged parts but also achieved the object of rendering it
unnecessary in the future for the continual repair of this door. Accordingly,
some such steps as were in fact taken in 1983 should in my view have been
carried out at any rate by 1979 and perhaps earlier, there being no suggestion
either before the trial judge or before this court that the steps adopted were
not ones which were known to the trade in 1979 or which were for any other
reasons impracticable at that date. Accordingly, and for these reasons I agree
with the conclusion of the trial judge, though perhaps the reasons that I have
given are not identical with those expressed in his judgment.
I would
dismiss this appeal.
Agreeing, SIR
JOHN ARNOLD P said: It is no doubt the case that where there is no repair
requiring to be done as in such cases as Quick v Taff-Ely BC
[1985] 3 WLR 981 and Post Office v Aquarius Properties Ltd (1985)
276 EG 923, cited by my lord, the repairing covenant on its true construction
does not require any design defect to be made good. It is, in my judgment,
undoubtedly the case on the basis of the authorities relating to cases where
there was a repair requiring to be done, such as Ravenseft Properties Ltd
v Davstone (Holdings) Ltd [1980] QB 12 and Elmcroft Developments Ltd
v Tankersley-Sawyer (1984) 270 EG 140, [1984] 1 EGLR 47 that on the true
construction of the covenant to repair there is required to be done, not only
the making good of the immediate occasion of disrepair, but also, if this is
what a sensible, practical man would do, the elimination of the cause of that
disrepair through the making good of an inherent design defect at least where
the making good of that defect does not involve a substantial rebuilding of the
whole.
Different
adjectives have been employed in different cases to describe the degree of
necessity which inspires in the particular case the doing of the further
remedial works — necessary, sensible, reasonable, satisfactory and the like.
But those are only compendious descriptions of the underlying state of affairs
in so far as they can be afforded by the use of a single adjective. If one
requires an effective exegesis of the conception sought to be embodied in those
separate adjectives, one cannot do better, in my judgment, than to look at the
descriptive passage in the judgment of Ackner LJ (as he then was) in Elmcroft
Developments Ltd v Tankersley-Sawyer (1984) 270 EG 140 at p 142,
[1984] 1 EGLR 47 in the passage cited by my lord, where he proposes the test in
these terms:
The patching
work would have to go on and on and on and on, because as the plaster absorbed
(as it would) the rising damp, it would have to be renewed, and the cost to the
appellants in constantly being involved with this sort of work, one would have
thought, would have outweighed easily the cost in doing the job properly. I
have no hesitation in rejecting the submission that the appellants’ obligation
was repetitively to carry out futile work instead of doing the job properly
once and for all.
And when he
refers to ‘the appellants’ obligation’, it is plain in the context that what he
means is the obligation upon the true construction of the relevant covenant.
Accordingly,
in my judgment, the approach to be adopted is that which my lord has described,
and it is plain that if all that was done to the door which stood in need of
repair was to patch it or even to renew it and to leave, when so doing, the
cause of the damage, which was the absence of any agent to defeat the
collection of the rotting water beneath the door, then one was not doing that
which the sensible, practical man would have advised as a sensible way of
dealing with the problem. Accordingly, on the true construction of this
covenant, it seems to me that the right conclusion is that the appellant
council had the obligation of making good the design defect which caused the
collection of water which occasioned the rotting, and that the failure so to do
was in the circumstances a breach of the appellants’ covenant for which they
were properly required to pay damages by the learned judge.
I agree that
the appeal should be dismissed.
The appeal
was dismissed with costs.
